Judgment:
ORDER
Manjula Chellur, J.
1. The contentions of the parties in nutshell are as under:
2. The writ petitioner claims to be the legal representative of original owner Mr. Munivenkatappa (her father-in-law). The present Writ Petition is filed by her, being aggrieved by the notification dated 22.3.2005 at Annexure - K made by the 1st respondent State in No. Na.Aa.Ee.30 Bim. Bhu.Swa.2004.
Father-in-law of the present petitioner was the owner of land bearing Sy. Nos. 50, 51 & 52 totally measuring 21 acres and 39 guntas situate at Tavarakere village of Begur Hobli. In this Writ Petition only survey number 50 measuring 6 acres 20 guntas is the subject matter (hereinafter referred to as 'the land'). Petitioner is the wife of one of the sons of Munivenkatappa by name Bheemananna @ Subbanna who died on 24.1.2005.
The State Government in exercise of its eminent domain power proceeded to acquire the land in question along with other lands for a public purpose, i.e. formation of Byrasandra Tavarakere Madivala layout (B.T.M.). Accordingly, 4(1) notification under Land Acquisition Act (hereinafter called for short 'the Act'), came to be issued in No. BDA/SALAO/4.PR(S)/ 31/1977-78 dated 19.9.1977 and final notification came to be passed vide No. HUD-3-MNJ-1998 dated 7.2.78. Subsequently, husband of the petitioner and other family members approached the authorities for de-notification of land from acquisition in respect of the land in question measuring 6 acres 20 guntas in Sy. No. 50 on the following grounds:
(1) acquisition proceedings was not completed as petitioner and other family members continued to be in possession of the said land as they were not divested of their title and so also possession of the same.
(2) That the family of the petitioner have developed the said land into nursery, garden and the same is the only means of their livelihood; and
(3) They have put up several structures and buildings making use of the same for living, cinema theatre (tent), godown, shops, etc. in their occupation and also others claiming under them.
On such representation, the Special LAO of 2nd respondent authority (hereinafter referred to as 'BDA') had issued an endorsement as per annexure - A dated 30.6.81 recommending de-notification of the land in question from acquisition because of existence of garden along with malkies, nursery and structures.
When such being the factual position regarding possession of the land, the officials of 2nd respondent tried to take over possession and demolish the existing structures (including a cinema theatre) by bringing bulldozers on 29.1.2000. Said action came to be stayed in W.P. 12091/00.
Ultimately, on the recommendation of 2nd respondent-BDA, the State Government (R-1) having satisfied itself that the physical possession of the land was not yet taken over, issued a notification de-notifying the land in question from acquisition on 12.4.2001 in No. UDD 85 MNX 2001 Under Section 48(1) of the Act produced at Annexure - C.
When the matter stood as stated above, the 2nd respondent-BDA started auctioning the sites in Sy. No. 50 inspite of de-notification of the land from acquisition. On enquiry, the petitioner learnt, a notification dated 9.5.2001 in No. UDD 85 MNX 2001 came to be issued by the State Government (R-1) as per Annexure-D withdrawing the notification dated 12.4.2001 issued Under Section 48(1) of the Act.
3. Aggrieved by the same, the petitioner approached this Court in W.P. 37577/2003 and this Court quashed the said notification dated. 9.5.2001 as per orders at Annexure - E. Questioning the same, 2nd respondent preferred an appeal before Division Bench in W.A. 8084/2003. The said appeal came to be dismissed on 6.1.2005.
4. As per the directions of this Court Respondent No. 1 issued a notice to the petitioner to appear before it and accordingly, this petitioner not only appeared but also filed objections bringing to the notice of the authority several facts including the fact that at no point of time the possession of the land was taken over by any one muchless, the respondents 1 & 2. Therefore, according to her she was neither dispossessed nor divested of ownership of the land in question in any manner. The 2nd respondent-BDA authority contended before the 1st respondent State that they have taken over possession of the land and auctioned the sites as well. Apparently, the 1st respondent proceeded to issue the notification dated 22.3.2005 (2nd time) as per Annexure-K withdrawing the de-notification order dated 12/4/2001.
5. According to the petitioner the said action of the 1st respondent is without application of mind and also being not aware of factual position, therefore, it is illegal, arbitrary and capricious.
6. It is further contended on behalf of the petitioner, the so called claim of the respondents 3 to 21 that they have acquired right, title and interest in the sites purchased by them in the auction sale held by the 2nd respondent-BDA as the highest bidders of their respective sites as void and illegal in view of the fact auction and confirmation of sale being subsequent to the order of this Court holding the notification dated 9.5.2001 as void. Therefore, 2nd respondent-BDA cannot pass on any right, title or interest to the respondents 3 - 21. (auction purchasers). Hence, said auction and sales have no binding effect on the respondents.
7. She also questions the authority of the respondents 1 & 2 to auction the sites subsequent to the notification under 48(1) of the Act as the land ceases to be the property of either 1st respondent or 2nd respondent-BDA.
8. The petitioner also complains differential treatment by respondents 1 & 2 to different owners of land whose lands were also acquired for same scheme B.T.M. layout. According to her, several numbers were de-notified as early as 11-10-99, but the respondents have not withdrawn these orders of de-notification. Therefore, according to the petitioner such differential treatment of the respondent No. 1 is to be condemned.
9. With these averments the petitioner has sought for not only quashing of the notification dated 22.3.2005 but also several other reliefs like restraining 2nd respondent to proceed further in pursuance of above notification and to hold the registered sale deeds and the possession certificates executed by 2nd respondent in favour of respondents 3 - 21 as null and void.
10. As against this, the 1st respondent State, the 2nd respondent- BDA, and respondents 3 to 21 have filed objections separately.
11. According to the 1st respondent State the land in question along with other lands was acquired for formation of BTM layout and BDA had taken possession of the said land on 19.3.84 itself. Writ Petition No. 5508/83 filed by the father-in-law of the petitioner questioning the acquisition was dismissed upholding the validity of the acquisition on 14.12.84. Similarly, other writ petitions No. 18360/88, 28227/94, 4042/98 and 5864/97 filed by different family members of late Munivenkatappa were all futile exercise to invalidate the acquisition of the land.
12. According to the 1st respondent, the family members of petitioner concealing the fact of the possession of the land already been taken over by the BDA, approached the Government for de-notification. On such false representation, the land was de-notified without hearing BDA. The BDA being unaware of the de-notification dated 12.4.2001 proposed auction of certain sites and published in the newspapers. The said auction was challenged in W.P. 37301-37302/2002 on the ground that the land was de-notified from acquisition. In the said petition the BDA brought to the notice of the Court that as the possession of the land was already taken over by the BDA, the State ought not to have de-notified the land. In W.P. 37302/2002 it further directed the responsible officer of the Government to file an affidavit explaining as to how the order of de-notification came to be made. Accordingly, such affidavit was filed.
13. In view of the possession of the land already being taken by the BDA, the Government withdrew de-notification order dated 12.4.2001. The state Government did take into consideration all the contentions raised by both the parties. Only after careful examination of entire records, the state Government has issued notification dated 09.5.01 withdrawing earlier notification dated 12.4.2001.
14. The 2nd respondent-BDA authority has filed its objection statement in detail as under:
The detailed reasoning for withdrawal of notification dated 12.4.2001 by the 1st respondent has become final and unassailable. All the necessary and proper parties are not impleaded. Therefore, the petition deserves to be dismissed. Similarly, they seek for dismissal of the petition on the ground that petitioner is guilty of suppression of material facts. After referring to details of the acquisition proceedings and also details of writ petitions filed by different family members of the petitioner, they contend that the approach of the petitioner and her family members for de-notification of the land from acquisition was based on concealment of material facts. They further contend, the action of the 1st respondent in withdrawing the de-notification dated 12.4.2001 was justified. They further contend possession of the land being taken on 23.3.84.
According to them, the 1st respondent ought not to have entertained the representation of the petitioner for de-notification without hearing the 2nd respondent authority. Being convinced of the mistake committed, the 1st respondent has rightly withdrawn its earlier notification by another notification dtd 9.5.2001. Subsequently, the State Government as per the directions of the High Court heard the petitioner and withdrew the de-notification dated 12.4.2001 again as per notification dated 22.3.2005.
When once possession of the land is taken, the land vests with the Government and there is no provision in law to revert the land to the original owner by notification of withdrawal from acquisition. The BDA after demolishing the structures standing thereon in July 1997, has allotted the sites to the RBI, BWSSB and other institutions, i.e. totally 37 sites were auctioned and they have paid huge amounts to the authority. The High Court in W.P. 4042/98 has upheld taking of possession of the land by BDA on 19.3.84. Therefore, the claim of the petitioner according to the respondent that they are in possession of certain portions of the land is false. The fact finding authority, i.e. the 1st respondent has examined the claim of the petitioner from all angles and has rightly withdrawn the earlier notification de-notifying the acquisition. Even otherwise, under Section 21 of the Karnataka General Clauses Act, such power is vested with the State Government to notify or de-notify. With these averments they have sought for dismissal of the Writ Petition.
15. The point that would arise for court's consideration is:
Whether the notification dated 22.3.2005 (consequence of order of the 1st respondent dated 15.3.2005) deserves to be quashed and what order?
16. From the arguments and the contentions raised by both the parties, it is explicitly clear, right from the time of notification for acquisition of the land, resistance was put forth by the owner and his successors persistently on the ground that they have developed the land into a garden and many structures including a cinema theatre (tent) (sic) put up in the land in question. It is also apparent on record, even notification under Sub-section (2) of Section 16 has come into existence. The contentions of the parties is on the factual and actual possession of the land. According to petitioner she and others claiming under her are in possession of the land, but according to the respondents 1 & 2 possession was taken over by them as long back as 19.3.1984 or 23.3.1984.
17. The very representation of the owner of the land in Sy.No. 50 for de-notification was on the basis of actual possession of the land being with them. Apart from this, in pursuance of the notification of the Government to consider de-notifying such of the lands from acquisition, wherever the lands are garden lands having malkies, nursery and other structures, the owners pleaded with the Government (Special Land Acquisition Officer) and B.D.A requesting them to consider their land for de-notification from acquisition as they belonged to 'Thigalara' community and have developed a garden with malkies and put up structures in Sy.No. 50 measuring 6 acres 20 guntas. Such circular came into existence on 15.11.1978 bearing No. HUD/91/CGL/78.
18. As a matter of fact, as noticed at Annexure 'A' dated 30.06.1981, endorsement came to be issued by the Special Land Acquisition Officer for B.D.A informing that the application of the owner dated 13.06.1981 for de-notification of land in Sy.No. 50 was recommended to the government. It further says structures and malkies are found in the said survey number. Therefore, it is evident that as on 30.6.81 itself garden with malkies, nursery and several structures were in existence in the land in question.
19. According to the petitioner, till 2000, Bangalore Development Authority never attempted to take possession of the property and they continued to be in lawful possession of the land till such attempt was made in the year 2000. When such an attempt was made, it was resisted by filing Writ Petition No. 12091/2000 wherein stay was granted in favour of the petitioner against the B.D.A. But according to respondent - B.D.A, it took over possession of the land as early as 23.03.1984.
20. According to the first respondent, the family members of the petitioner concealing the fact of taking over possession of land by B.D.A, approached the Government for de-notification. Therefore, being unaware of such fact, de-notification of the land from acquisition came to be made on 12.04.2001.
21. Parties are at loggerheads so far as the factual position with regard to possession of the land.
22. Section 48(1) of the Land Acquisition Act empowers the State Government to withdraw the notification of acquisition of land if possession of the land was not yet divested from the owner. In other words, notification Under Section 48(1) of the Act could be made only if possession of land in question lies with the owner of the land or anyone claiming under him. Of course, this is purely a question of fact.
23. The Government acting through the authority concerned, only if it is satisfied from the material placed on record that such possession of the land still lies with the owner, it could proceed to de-notify the land from acquisition. The Courts while exercising powers vested in it under Article 226 definitely cannot go into the question of fact in the normal circumstances. However, if it comes to the notice of the Court that the fact-finding is not based on any acceptable and legal evidence, it can go into the question of fact i.e. whether factually possession of the land was with the owner of the land or the possession was already taken over from him by the concerned authority.
24. Section 16(2) of the Land Acquisition Act refers to power of the authority concerned to take possession of the land after passing of an award Under Section 11 of the Act. Only after taking possession of the land, the land shall vest absolutely in the Government free from all encumbrances. Again, one has to ascertain what are all the modes of taking over possession of land are enumerated under the Land Acquisition Act. Apparently, no particular mode of taking over possession of the land is contemplated under the Act. But, time and again, the Apex Court and the several High Courts have said it cannot be a symbolic possession and it should be actual physical possession of the land. It is also well settled that taking over such possession would depend upon several factors including the nature of the land as on the date of taking over possession. There is definitely no hard and fast rule laying down what act would constitute taking over possession of the land.
25. A reference is made to Balvant Narayan Bagade v. M.D. Bhagat in : AIR1975SC1767 . Their Lordships of the Apex Court held that when the Government proceeds to take possession of the land under the Act, as all the interest in the land sought to be acquired by it, it must, take actual possession of the land. There can be no symbolical possession, in the sense understood by judicial decisions under the Code of Civil Procedure. The Act contemplates taking of actual possession of the land as a necessary condition for vesting of the land in the Government. Therefore, such possession would have to be taken as the nature of the land admits of. There cannot be any set of rules what exactly would mean 'taking possession of the land'? Presence of the owner or the occupant of the land is not necessary to effectuate taking of possession. It is also not necessary to issue legal notice to the owner or occupant of the land that possession would foe taken on a particular date at a particular time. It has been further observed in the said decision that even if the owner or occupant therein re-enters the land and resumes possession (which was only symbolic), the very next moment after the land was actually taken possession of and became vested in the Government, such an act on the part of the owner will not have the effect of obliterating the consequences of vesting. In other words, once actual possession of the property has been taken which is evidenced under Sub-section (2) of Section 16 of the Act, land stands vested in the Government free from all encumbrances.
26. As matter of fact, this Court in the year 2005 relying upon Supreme Court decision in B.N. BHAGADE's case, on the question of law referred by Division Bench to the Full Bench in writ appeals 1485/2003 clubbed with 1468/2003 and 1488/2003, made a detailed discussion on this aspect of the matter by its order dated 23.12.2005.
27. In this case, it was held what is required under the Act is taking of actual possession on the spot. In the eye of law, the taking of possession will have the effect of transferring possession from the owner of the land to the state Government. It is no doubt true that the Act is silent with regard to the mode of taking possession. It is settled law by series of judgments of the Apex Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum of panchanama by the Deputy Commissioner or the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is further held when the Government proceeds to take possession of land acquired by it under the Land Acquisition Act, it must take actual possession of the land since all interest in the land are sought to be acquired by it. Therefore, there can be no question of taking symbolical possession in the sense understood by judicial decisions under the provisions of the CPC., nor would possession merely on paper be enough. The Act contemplates as a necessary condition of the vesting of the land in the state Government which is the actual taking possession of the land by the proper authority. Again, such possession would have to be taken as the nature of land admits of.
28. From the above judgments, one can be sure that depending upon the facts and circumstances of each case, in particular, the nature of land, the existence of structures on the land and the authority who takes over possession, the Court has to conclude whether actual possession was taken over, which is a condition precedent for vesting of land in the State Government.
29. The next question is whether right of intermediary to retain land appertaining to buildings and structures owned by such intermediary would be affected by mere fact of him not in actual possession. If a building or structures are leased out and are thus in possession of tenant or any other person claiming under the owner, the right of original owner to retain the possession of subject matter of lease is not at all affected. Ref. is made to 2002 SCC 188 State of West Bengal and Ors. v. Karan Singh Binayak and Ors.
30. The BDA has furnished entire original file pertaining to the acquisition of land in question on the directions of this Court. They are perused in detail.
31. From the records produced by BDA it is noticed, several persons approached this Court, civil court & other department on the ground that several persons are in occupation of the property in question running cinema theatre, garage etc. They are as under:
(a) The material on record would show from the inception of acquisition proceedings itself, Mr. Munivenkatappa, his family members and occupants claiming under him brought to the notice of the authorities, the existence of developed garden having varieties of fruit bearing trees buildings and structures on the land in question. The authorities in the year 1982 i.e. the Special L.A.O. requested the concerned officials to inspect and assess the value of structures including ACC cinema tent, etc. The records further disclose one Mr. Madaiah was running cinema theatre much prior to the alleged date of possession mahazar in 1984. The correspondence between said Madaiah and BDA and also other authorities, so also between BDA and Deputy Commissioner and District magistrate would establish at least from 1982 till 2000 the licence to run shows in the cinema theatre was renewed and obtained from time to time. Annexure - B discloses, in the year 2000 licence was renewed to run the cinema shows in the theatre in favour of this Madaiah. The last date of inspection of the spot by the officials of several departments for the purpose of renewing licence to issue certificates are found in the record. They are KEB certificate, fire accident certificate and P.W.D certificate. Those inspections are for the period between 1999 and 2000.
(b) The records further reveal said Madaiah also approached this Court in W.P. 5010/84 and obtained stay. There is reference to this writ petition at possession mahazar dated 23.3.1984. The records further reveal one Gopalakrishnan - proprietor of Ayyappa Industrial Tools, Bannerghatta Road also approached this Court and the civil Court in O.S. 10638/85, etc. disclosing that since 1982 under Small Scale Industry Self Employment Scheme he is running the business and he should not be disturbed.
(c) The inspection notes of the Commissioner in South Division., B.D.A. On 18.7.85 discloses that Deputy Commissioner has granted licence to the cinema tent in Sy. No. 50 & 51 of Tavarakere. He further said, KEB has granted power supply without obtaining NOC from BDA. Therefore, he directed the office to write a letter to Deputy Commissioner to withdraw the said licence and to disconnect the power supply to the cinema.
(d) O.S. 10638/85 and O.S. 10635/85 were filed by the proprietor of Ayyappa Machine Tools and one Raj Kumar contending they are in possession of the property and they should not be disturbed. There was exparte T.I. There was one more suit in O.S. 1222/84 against B.D.A. pertaining to Sy. Nos. 50, 51 and 52.
(e) Apart from this, suits in 849, 850, 852 and 853/84 were filed in the year 1984 and obtained injunction against B.D.A. not to interfere with possession of Sy. No. 50 and other lands. Mr. Madaiah filed one more Writ Petition No. 7807/84. O.S. 3644/83 and 3209/83 were also filed pertaining to the very same survey number for permanent injunction.
(f) On 20.3.1984 the Law Officer of B.D.A. directs the Special Deputy Commissioner, B.D.A. to take possession of Sy. No. 50 of Tavarakere immediately. At that point of time W.P. 5010/84 came to be filed by Madaiah. The owner of the theatre approached this Court and obtained stay against B.D.A. On 5.4.84 late Munivenkatappa requests the B.D.A. not to take possession of the property in Sy. No. 50 by bringing to the notice of the B.D.A, the temporary injunction order not to demolish any structures on the property dated 20.3.84 in O.S. 849/84 and connected matters as stated above.
(g) From the records it is also noticed at one point of time B.D.A. intended to give bulk allotment of land in Sy. Nos. 50, 51 & 52 to National Aeronautical Laboratories Employees Co-op. Housing Society Ltd., Bangalore. This came to be challenged in W.P. 28227/94. However, there is nothing on record to show any land in Sy.No. 50 was part of the said bulk allotment. It is also noticed from records OS. 6522/97, O.S 5925/97, came to be filed in respect of these 3 survey numbers.
32. According to the BDA they, had taken possession of the land in 1984 and demolished structures on the said land in 1997. Suprisingly, as per the letter of the Commissioner of BDA dated 18.4.01, they demolished structures on 29.1.2000. (Page 539 of original records).
33. Though this Court need not undertake fact finding exercise, in order to know the truth or otherwise of the contentions under the circumstances mentioned above, it is necessary to ascertain whether actual possession still remains with the owner or persons claiming under the owner or possession was taken over in accordance with the procedure as contended by 2nd respondent BDA. It is relevant because ultimately the Court has to opine whether the petitioner approached the 1st respondent concealing material fact of possession while submitting representation to the first respondent authority for withdrawal of the notification of acquisition. Categorically both respondents 1 and 2 have stated possession did not remain with the owner of the land subsequent to March 1984. Copy of the judgment in Writ Petition.4042/98 is perused. At paragraph-8 while discussing with regard to validity of acquisition a reference was made to a notification dated 7.5.1985 evidencing taking possession of the said land on 19.3.1984. The learned Judge opines narration of facts clearly shows that the acquisition proceedings have become final and the possession of the land was taken over as on 19.3.1984. This observation was made by the Court without reference to any of the records but only based on the contentions of the parties. At that point of time, there was neither de-notification of the land from acquisition nor withdrawal of the order of de-notification. As a matter of fact, petitioner did contend being in possession and enjoyment of the land all through.
34. During the pendency of the proceedings it so happened, respondents 3 to 21 the so called auction bidders of the sites in the very same land entered into compromise with the petitioner owner herein. By filing applications they came to be impleaded as respondents 3 to 21. The joint memos filed by them refers to factual position in so far as possession of the property in question. Respondents 3 to 21 categorically do admit and accept that the land in question still remains in possession and enjoyment of either petitioner herein or parties claiming under her. As per the terms of the joint memo filed by the parties, the respondents contend they have invested huge amounts to acquire the plots in the land in question from BDA in an auction sale held by BDA. The writ petitioner owner gives up her right, title and interest in respect of the plots purchased in the auction by respondents 3 to 21. In other words respondents admit petitioner putting the respondents 3 to 21 in actual possession of the plots (sites), acquired by them in the public auction, in terms of joint memo.
35. As a matter of fact, neither first respondent State nor the second respondent BDA authority are parties to this compromise petition. Therefore, the terms of joint would bind only respondents 3 to 21 and the petitioner hereunder. In that view of the matter, the controversy pertaining to other portions of the land (balance land) other than the land handed over to respondents 3 to 21, this Court has to go through the entire records to arrive at the right conclusion.
From the records of BDA it is noticed, a possession mahazar dated 23.3.1984 was drawn by the Officials concerned. It is in Kannada, which reads as under:
As per this document (Page 91 of BDA records), the Revenue Surveyor along with the officials of Engineering Department of BDA and other concerned officials visited the land on 23.3.84 after issuing award notice dt.19.3.84. It further says they verified the entire land and the surveyor indicated the boundaries of the lands to the officials of the Engineering section but however, they do not mention the actual boundaries. It also says the inspection of the land made by them reveal existence of following trees and structures detailed hereunder:
MALKIES
Allahabad Goa- 30
Pannarale Trees-8
Jackfruit Trees-8
Tamrind Tress-16
Mango Trees -63
Stone wells-2
Custard apple Trees-15
Nerale Trees-7
Hippe Trees-1
Chigare Trees-1
C Hunase Trees-6 & Chelli Trees-3
37. The details of the buildings (unauthorised constructions) are as under:
Touring Talkies-1
Mosaic Tiles Factory-1
Car Garrage-1
Lorry Garrage-1
RCC Malige(shops)-7
Compound put up with stones.
38. It further says all the buildings were in occupation of the persons and they were conducting different trades like cement, carpentry, etc. It also refers to granting order of an injunction on 20/3/1984 against BDA restraining them from taking possession of the land in question ordered in OS. No. 849/84, 850/84, 851/84 and 852/84 by the civil court. It also says in writ petition 5010/84, on 15.3.84 stay order was obtained against the BDA for the same relief. As per this document the owners and the occupants of the buildings present at the time of mahazar refused to hand over possession of the property in question. Therefore, having no other option, as per Section 16(2) of the Act the land was handed over to Engineering Section of BDA. Therefore, from that day onwards i.e., 23.3.84 survey No. 50 has to be held as being in possession of BDA.
39. The gist of the above mahazar would only indicate possession was handed over only on the paper and no actual possession came to be taken over either by Revenue Inspector or Surveyor or BDA officials in particular, Engineering section of BDA on 23.3.1984. If the land in question was only a vacant land without any trees, buildings or structures, then the delivery of the property is effected by going upon the land or in case of resistance, by removing the person resisting unauthorisedly. Apparently, for the reasons detailed above, possession of the property was not taken over on that day. In that situation one has to see when exactly the actual possession came to be taken over and when the structures or buildings were removed on the land in question including malkies.
40. The perusal of the entire records furnished by the second respondent authority-BDA indicate a notification came to be made under Sub-Section 2 of Section 16 on 7.5.85 that the lands mentioned in the notification have been acquired and possession was taken over by the undersigned authority from the owners for formation of layout. Survey No. 50 also finds a place in this document at serial No. 19. Subsequent to 7.5.85 there is nothing on record indicating when exactly the property in question came to the possession of BDA to proceed with the formation of the layout. Absolutely nothing is found in the records furnished by the second respondent. It is well settled that taking of possession within the meaning of Section 16 or 17 of the Act means taking of actual possession on the spot. It is neither a possession on paper nor a symbolic possession as generally understood in civil law.
41. In this context, in the decision of Supreme Court in Bhagde's case supra, their Lordships have said that in view of no provision being made in the Act regarding the mode of taking possession, unless possession is taken by written agreement of parties concerned, the mode of taking possession obviously would be, for the authority to go upon the land and do some act which would indicate that the authority has taken possession of the land, it could be in the form of declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land. Once such possession has been taken, the owner or the occupant of the land is held to be dispossessed. Then the land vests in the Government.
42. This Court in : ILR2005KAR295 in the case of D. Narayanappa v. State of Karnataka, Secretary, Hud Department also held relying upon Bhagde's case that the notification issued under Section 16(2) cannot be accepted by the Court as it refers to taking over of symbolic possession and the actual possession of the land was not taken from the petitioner by the Government by following mandatory procedure as held by the Supreme Court as stated above.
43. The very same Bench in : ILR2005KAR5692 in the case of V. Gundareddy v. The Secretary, Department of Revenue said, who is the competent authority to take possession of the land in order to hold that the land vests absolutely in the Government free from all encumbrances as contemplated Under Section 16(1) of the Act.
44. Section 16(1)(2) of the Land Acquisition (Mysore Amendment) Act XVII OF 1961 reads as under:
16. Power to take possession. - When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon [vest absolutely in the [Government]], free from all encumbrances.
(2) the fact of such taking possession may be notified by the Deputy Commissioner in the Official Gazette, and such notification shall be evidence of such fact.
His Lordship at paras 16 & 23 held as under:
Assuming that possession of the lands is taken, from what has been observed from the original files, it is seen that possession of the lands is not taken by the Deputy Commissioner as required under Section 16(2) of the Act nor even by the Special L.A.O. On the other hand, it purports to have been taken by the Deputy Tahsildar/Tahsildar. They are not empowered to take possession. The most unfortunate aspect is the officers are not studying the provisions of the statutes and exercise their power in accordance with law. Mechanically some one will do an act which has to be done by the competent authority. It is for the Government to take steps to see that its officers and officials function within their power and authority given under the relevant statutes.
23. What is surprising is, in paragraph 5 of the affidavit filed by the Special Land Acquisition Officer, it is stated that the mahazars were drawn while taking possession of the lands in question by the Tahsildar are missing. How and why they are missing from the records, is quite unimaginable and therefore, this explanation offered by the Special L.A.O. is rejected as it is not probable to believe and the explanation offered in this regard is most unconvincing. Therefore, this Court came to the conclusion that either they are deliberately withholding those documents or no such documents are there. But, the undisputed fact remains that the Tahsildar alleged to have taken possession of the lands is the affidavit of the Special L.A.O. who is not authorized in law to take possession of the lands but it is only the Deputy Commissioner of that District where lands are situated is empowered to take possession of the acquired lands Section 16(1)(2) of the L.A. (Mysore Amendment) Act XVII of 1961. When the word collector was deleted from Section 16(1) & (2) of the L.A (Mysore Extension Amendment) Act XVII of 1961 and other provisions of the Act and in its place Deputy Commissioner was substituted, the power of Deputy Commissioner to take possession of acquired lands in Section 16(1)(2) of the Mysore L.A. Act is not changed. In the matter of taking possession of the acquired lands Deputy Commissioner is not changed and his power is not divested. The power to take possession of the acquired lands was retained with the Deputy Commissioner, obviously with some purpose and definite intention, therefore, that power cannot be exercised even by the Land Acquisition Officer or any other person. Other than the Deputy Commissioner if, any other officers takes possession of acquired lands, it has to be held that possession is not taken at all as the same is without authority of law.
45. The contents of possession mahazar (original files) would indicate legally and factually none of the authorities could take actual possession of the land in view of the injunction order from the civil court and stay order by this Court. The very document indicates only on paper possession was taken. In the absence of any material indicating taking actual possession of the land as stated above, it continues to be in possession of the owner or occupants claiming under the owner of the land.
46. On the facts and circumstances of the present case, it has to be more than mere recording on a piece of paper, as the very nature of land (having structures and malkies) requires taking physical possession of the property from the occupants or owners of the land. Because of injunction and stay order, the authorities were not able to take actual possession of the land. Therefore, the recording on paper refers to symbolic possession only. Though under Section 16(2) of the Act, once notification is issued possession of the property can be presumed, such presumption is rebuttable. In the present case, from the original records furnished by the respondents, such presumption will not come to the assistance of the 1st and 2nd respondents.
47. Unfortunately subsequent to 12.4.2001, the second respondent approached the first respondent informing that it has already auctioned sites in Sy. No. 50 Tavarekere. The first respondent withdrew the notification dated 12.4.2001 (under Section 48 of the Act) on 9.5.2001. This came to be challenged by the petitioner approaching this Court as stated above when the BDA officials proposed the auction. The owner of the land took stay of the notification dated 9.5.2001. Ultimately this Court said after giving opportunity to the parties the first respondent should proceed in accordance with the procedure.
48. Again the Government on 22.3.2005 once again passed an order withdrawing its notification dated 12.4.2001. The present writ petition is filed questioning the said order dated 22.3.2005.
49. Right from the beginning the BDA contended, possession was taken as long back as in 1984, therefore order passed Under Section 48(1) of the Act by the 1st respondent was void. Throughout the proceedings at different stages at different times, the consistent contention of the BDA was, they have taken possession of the land as long back as 23.3.84. Unfortunately, it was only a paper possession as discussed above by some officials who were not authorised to do so.
50. The question now would be whether the Government was right once again passing an order dated 22.5.2005 withdrawing its earlier order under Section 48(1) of the Act dated 12.4.2001.
51. The original records furnished by the BDA, reveals several facts. Subsequent to 12.4.2001 order of the Government under Section 48(1) of the Act, the Commissioner of BDA wrote a letter No. DO. No. BDA/Commr./13/2001-02 (Page 539) dt 18.4.01 to the 1st respondent that they ought to have been heard or consulted before proceeding with the order Under Section 48(1) of the Act as they have already auctioned the sites formed in the said land without the knowledge of withdrawal of the notification. If the auction is subsequent to 23.3.84 or 12.4.2001, it cannot be valid as the land never vested with the Government and it was never handed over to BDA. Under those circumstances, it could not have auctioned the sites. Apparently no material is forthcoming. As a matter of fact, the Commissioner of BDA in his letter dated 18.4.2001 refers to demolition of structures on the land in question in 1997 itself but the same is not substantiated with any material on record. Therefore, both taking over possession of the land and also demolition of the structures seems to be only on paper.
52. In the light of above facts the Government was factually wrong in opining that the petitioner concealed material fact of parting with the possession of land to BDA in 1984 itself. Such contention of BDA was only with reference to paper possession or symbolic possession as referred at possession mahazar dated 23.3.1984. The above discussion would only explicitly clarify the factual position that at no point of time neither physical possession of the property was taken over by BDA nor they demolished structures existing on the land in question.
53. Under the above circumstances, the BDA ought not to have auctioned any of the sites In view of the following facts:
a) factual possession was never handed over to the Government or BDA;
b) possession mahazar indicates only symbolic possession being taken; that too by an official who was not authorised to do so; (Original records P.91);
c) Therefore, the land never vested with the Government as contemplated under law.
Hence, whatever may be the action of the 1st respondent or the 2nd respondent authorities, there is no legal sanctity to any of the acts of them including auction of the sites.
54. However, in view of the joint memo or compromise between the petitioner and respondents 3 to 21, the right, title and interest claimed by the respondents 3 to 21 need not be looked into or questioned. The above observation would be restricted to the remaining portion of the land only, (other than the land purchased by respondents 3 to 21). As a matter of fact, the 2nd respondent authority never attempted even to file a list giving the names of the auction purchasers with reference to the site numbers. Respondents 3 to 21 have approached this Court by filing impleading applications. The petitioner in all probability to buy peace having fought the litigation for more than 3 decades moving heaven and earth must have entered into compromise with the respondents 3 to 21.
55. There is one more aspect to the matter. According to the petitioner many other lands belonging to several other owners which were acquired for the very same purpose of formation of B.T.M. layout, are withdrawn from acquisition on the representation of respective owners of the lands. They have furnished those details at annexure - L1 to L-6. The survey numbers are:
32/2A, 30/2B, 30/2C, 74, 38, 39/1, 4/10, 36/2, 37/1, 37/2, 37/3A, 37/3B, 37/4, 48/5B, 48/6B, 47/1A, 47/1B, 54/4 and 54/5. This is neither denied nor challenged by respondents 1 & 2.
56. The petitioners plead step motherly attitude of the authorities by discriminating the petitioner alone by refusing to give similar and equal treatment. In other words, the petitioner is not treated on parity with similarly placed land owners is the contention. The principle relevant for consideration was referred to in the following decisions:
In : AIR2001SC3285 Sube Singh and Ors. v. State of Haryana and Ors. allegation against the authorities was arbitrariness and discrimination. The Government as a policy decision decided to exclude lands having structures thereon from acquisition. But the Government made a classification of existing structures into A, B, and C classes. The question was whether such classification was acceptable. This was questioned by the petitioner therein. He approached the Court as the Government of Haryana rejected the request of the petitioner for exclusion of their property front acquisition since the constructions on the lands were either B class or C class and the lands which were excluded from acquisition had 'A class constructions on them. It was urged before Court that no uniform principle was followed by the Government. Their Lordships of the Apex Court opined, in the absence of material placed before them to show the basis of classification of existing structures on the lands proposed to be acquired, they were persuaded to accept the contention raised on behalf of the appellant owners that the rejection of request of the appellants for the exclusion of their land having structures on them was not based on a fair and reasonable consideration of the matter. Hence, they opined such action of the Government is arbitrary and discriminatory. Accordingly, the orders passed by the State Government rejecting the representation of the appellants/owners came to be quashed with a direction to the Government to consider the objection petitions or the representation filed by the owners for exclusion of their properties from acquisition.
In (2004) 12 SCC 540) State of Haryana and Ors. v. Gurcharan Singh and Ors. it is held as follows:
It was also pointed out that the Government had released lands of other similarly situated persons.
This suit was decreed on 28-7-1993 on the basis of Standing Order 28 and also on the ground that the Government could not discriminate between the owner and another. The appeal filed by the State was allowed on 22-5-1995 on the ground that the Standing Order did not confer any right on a party to claim back possession.
: AIR2004SC5054 BEML Employees Housing Building Co-Operative Society v. State of Karnataka and Ors. This was a case where discretion of the state Government deciding either to continue or to discontinue acquisition proceeding on the basis of report submission by the concerned authority was under challenge. Even though state Government had power to exercise statutory discretion, it has to be exercised on reasonable grounds. In this context their Lordships said:
they were merely recommendations and the State Government was not bound to accept them. The State Government had wide discretion to accept or reject the said report under Section 5-A of the Act and take independent decision to continue or discontinue the acquisition proceedings in respect of any particular land proposed to be acquired. Wide the discretion may be, but not wild. All exercise of statutory discretion must be based on anathema to the rule of law envisaged in Article 14 of the Constitution. The facts placed on record do not indicate that the case of the fifth respondent was (sic not) similar, if not identical, to that of the other landowners, whose lands were dropped from the acquisition proceedings. Neither the appellant nor the State Government has been able to show us any rational distinction between the case of the fifth respondent and the cases of the other landowners, whose lands were excluded from the acquisition. When this is so, it appears to us that the vice of hostile discrimination infects and vitiates the decision taken by the State government to continue with the acquisition against the fifth respondent's land.In : AIR2006SC3444 in the case of Kanchan and Ors. v. State Transport Appellate Tribunals their Lordships of the Apex Court were considering grant of permits by State Transport Authority. When malafides and non-application of mind enter into the action of the authority while granting permits, it was held the entire action in granting permits gets vitiated. In this context their Lordships further said the very fact of authorities acting without application of mind in certain cases is itself sufficient to attach vulnerability to the entire action.
58. Therefore, in the present case, there is no hesitation to say that the action and response of the authorities is neither fair nor uniform. This mode of exercise of statutory discretion bound to cause discrimination and arbitrariness to the public who approached them.
59. For the above reasons withdrawal of notification dated 12-4-2001 (de-notification from acquisition) has to be held as arbitrary and discriminatory.
60. From the above discussion, it is crystal clear that the Government went on passing one order or the other, without application of mind. When the concerned LAO recommended for de-notification of the land from acquisition in the year 1981 as per Annexure - A, no action was taken. A possession mahazar came into existence on 23.3.1984 without actual possession being taken by the authorities concerned (as contemplated under Section 16(2) of the Act.) Therefore, the land never vested in the Government. If the land did not vest in the Government, the subsequent auction of sites in the said land is also vitiated. The petitioner never concealed any fact, in particular, being in possession of the land till date before the Government. The authorities concerned without verifying the fact of actual possession of the property with the petitioner, proceeded to withdraw the notification dated 12.4.1081, only based on the contents of a letter from the 2nd respondent on 18.4.01. Therefore, the 1st respondent Government was not justified in passing neither the first withdrawal notification dated 9.5.01 or the 2nd notification dated 22.3.05 withdrawing de-notification order dt.12.4.01.
61. It may not be out of context to refer to Division Bench Judgment of this Court in : ILR2005KAR2539 Vijaya Leasing Limited v. State of Karnataka by its Secretary and Ors. where their Lordships in a case where withdrawal of de-notification by the Government came to be questioned, held as under:
Although the pleadings filed in this case and the arguments advanced before us would throw number of legal issues for decision-making we do not find it necessary to deal with all those issues for the purpose of disposal of this writ appeal. The basic question that arises for decision-making in this writ appeal is whether the learned Judge is justified and acted legally in undertaking the judicial review of the order made by the state Government under Sub-section (1) of Section 48 of the Act in the absence of any challenge to it by any party. It is trite that the order made by the State Government as per Annexure - E dated 5-10-1999 is a statutory order as a donee of the statutory power conferred under Sub-section (1) of Section 48 of the Act. If that order has to be annulled, there should be challenge from some aggrieved party. Of course, this question would not arise for decision-making if we were to accept the argument of Sri S. Vijaya Shankar that the power to make Annexure - F Notification is inherent in the power of the State Government conferred under Sub-section (1) of Section 48 of the Act itself. But we have good reasons not to agree with the submission of the learned senior counsel. Section 48 or any other provision of the Act does not deal with the power of the State Government to modify or annual or rescind an order made by the State Government under Sub-section (1) of Section 48 of the Act. Therefore, the impugned Notification Annexure -F could not be regarded as an outcome of an exercise of power of State Government conferred under Sub-section (1) of Section 48 of the Act. In the first place, the order made by the State Government impugned in the present writ proceedings cannot be traced to the power conferred upon the State under Sub-section (1) of Section 48 of the Act. If these two orders are distinct and separate, they have to be challenged specifically and separately invoking the power of judicial review of this Court under Article 226. What was assailed before the learned single Judge in the Writ Petition was only Annexure - F, and not Annexure - E. however, the impugned action is sought to be supported by referring to Section 21 of the General Clauses Act. Suffice it to state that having perused several authorities placed before us by the learned Counsel for the parties, we do not find any direct judgment of the Apex Court or this Court or any other High Court to say that the provisions of Section 21 of the General Clauses Act are applicable with regard to an order that may be made by the State Government in exercise of its power under Sub-section (I) of Section 48 of the Act. In The State of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors. : [1966]3SCR557 a three-Judge Bench of the Apex Court has opined that the Notification issued Under Section 4(1) of the Act initiating the land acquisition proceedings can be withdrawn by the State Government in terms of Section 21 of the General Clauses Act. A contrary view was taken by a Division Bench of Supreme Court in Larsen and Toubro Limited v. State of Gujarat and Ors. (A.I.R 1998 SC 1160). It is seen that the two-Judge Bench of the Supreme Court have not noticed the earlier larger Bench of the Supreme Court have not noticed the earlier larger Bench binding decision in Vishnu Prasad Sharma's case (supra). Alternatively it needs to be emphasized that even assuming that Section 21 of the General Clauses Act could be invoked by the State Government, the necessary condition to invoke that power did not exist in this case, when the Government issued the impugned Notification. The rights of the owner of acquired land before the Notification under Sub-section (1) of Section 48 of the Act and the rights of the owner there afterwards are all together different in legal terms. There is no dispute and there cannot be any dispute between the parties that after the State Government issued Notification under Sub-section (1) of Section 48 of the Act, the lands sought to be acquired stood reverted to the owner with full bundle of rights. The petitioner-owner being the purchaser of the schedule land from the vendee of the original owner, it stepped into the shoes of the original owners with all legal entitlements. In other words, all steps and proceedings taken by the State in exercise of its eminent domain power starting with issuance of Section 4(1) Notification and ending with passing of the award are wiped out by virtue and force of the legal consequences that flow from the issuance of notification under Sub-section (1) of Section 48 of the Act. If this is the legal consequence, then, the attempt of the State Government again to acquire the very schedule land by a shortcut method by issuing the impugned notification to withdraw the Notification issued under Sub-section (1) of Section 48 of the Act should be frustrated. After issuing Notification under Sub-section (1) of Section 48 of the Act, if the land previously sought to be acquired is required for any public purpose, the only course open to the State Government is to again initiate proceedings envisaged under the Act to acquire the land by issuing Section 4(1) notification again. Therefore, it cannot be said that the power to issue the impugned notification withdrawing the earlier Notification issued under Sub-section (1) of Section 48 of the Act is a part of the power of the State Government conferred on it under Sub-section (1) of Section 48 of the Act.
62. Regarding this judgment of the Division Bench, it was brought to the notice of the Court that this order is challenged before the Apex Court and the operation of the order is stayed.
63. Even without relying upon the above said Judgment, on facts and other legal aspects discussed supra, there is no hesitation to hold that at no point of time neither the owner nor petitioner nor any occupant claiming under the owner came to be dispossessed on 23.3.1984 as contended by the 1st and 2nd respondents. Unfortunately, the said possession mahazar came to be drawn in the presence of Revenue Inspector on 23.3.1984 and not by the Deputy Commissioner who is the competent authority to take possession of the land Under Section 16(2) of the Act (Mysore Amendment) Act. Unfortunately, the authorities without even looking into the records kept on making one order or the other making the parties concerned run from pillar to post.
In the light of above discussion and reasoning, the Writ Petition deserves to be allowed. Accordingly, the following: